Mikutaitis v. United States

• Citation: 107 S.Ct. 3,92 L.Ed.2d 756,478 U.S. 1306
• Decision Date: 17 September 1986
• Docket Number: No. A-195,A-195
• Parties: Mecislovas MIKUTAITIS v. UNITED STATES
• Court: U.S. Supreme Court

478 U.S. 1306

107 S.Ct. 3

92 L.Ed.2d 756

Mecislovas MIKUTAITIS

v UNITED STATES.

No. A-195.

Sept. 17, 1986.

Stay Vacated Oct. 20, 1986.

See 479 U.S. 911, 107 S.Ct. 310.

Justice STEVENS, Circuit Justice.

The United States District Court for the Northern District of Illinois is holding applicant, Mecislovas Mikutaitis, in civil contempt of court because he refuses to testify at a deposition in Chicago despite a grant of immunity by the United States District Court for the Middle District of Florida, where denaturalization proceedings against one Jurgis Joudis are pending. The papers before me indicate that the testimony the Government seeks from Mikutaitis will tend to prove that he, as well as Joudis, cooperated with the Nazi Government, committed war crimes, and engaged in treasonous activity against the Soviet Union after it invaded Lithuania during World War II. Mikutaitis asserts that the testimony the Government seeks to compel may be used by the Soviet Union in a criminal proceeding against him in the event that he is denaturalized and deported there and his testimony comes to the attention of the Soviet Government. Thus, he contends that because the grant of immunity does not adequately protect against the use of his testimony against him in a criminal prosecution by a foreign sovereign, he has a Fifth Amendment privilege against testifying.

In support of his theory, Mikutaitis argued before the District Court that there is a probability that he too will eventually be denaturalized and deported since his deposition testimony may be used against him in such a civil proceeding. In this regard, a lawyer for the Government's Office of Special Investigations testified that the United States is actively engaged in seeking to denaturalize and deport those who cooperated with the Nazi Government and concealed their involvement to obtain entry into the United States. Mikutaitis also presented an expert in Soviet law, who testified that the Soviet Union is likely to prosecute Mikutaitis for treason if he is deported there. The District Court recognized that Mikutaitis has a "realistic fear of prosecution," but nonetheless found Mikutaitis in contempt. The District Court held that the court order sealing the deposition sufficiently protected him from the risk that his testimony would ever be disclosed to the Soviet Union. See United States v. Joudis, 800 F.2d 159, 161 (CA7 1986). The District Court allowed Mikutaitis to remain free on bail pending appeal.

The United States Court of Appeals for the Seventh Circuit affirmed the contempt order, concluding that "the sealing order [was] adequate to protect Mikutaitis from Soviet acquisition of his testimony and thus override his Fifth Amendment claim." Id., at 162. In light of this conclusion, it was not necessary for the court to decide whether the constitutional privilege against self-incrimination provides any protection against compelled testimony when there is a substantial risk that a foreign sovereign will prosecute the witness. See Zicarelli v. New Jersey Investigation Comm'n, 406 U.S. 472, 478, 92 S.Ct. 1670, 1674, 32 L.Ed.2d 234 (1972) (declining to reach constitutional issue since there was no "real and substantial" danger that witness' testimony would be used against him in a foreign prosecution).

On September 5, 1986, a panel of the Court of Appeals granted the Government's motion for immediate issuance of the mandate, and on September 10, the District Court ordered Mikutaitis to surrender himself to the custody of the United States Marshal on the following day. Mikutaitis complied with that order. He now asks me, in my capacity as Circuit Justice, to stay the issuance of the Court of Appeals' mandate and the District Court's order requiring him to report for custody, thereby allowing him to remain free on bond pending his filing a suggestion for rehearing to the Court of Appeals, or a petition for certiorari to this Court.¹ Pursuant to my request, the United States has filed a memorandum in opposition to the application.

In my opinion the question raised by this application is sufficiently similar to the question identified by THE CHIEF JUSTICE in Araneta v. United States, 478 U.S. 1301, 107 S.Ct. 1, 92 L.Ed.2d 751 (1986) (BURGER, C.J., in chambers), to make it appropriate for the full Court to consider this application for a stay at the same time it decides whether or not to grant certiorari in Araneta. ² In Araneta, THE CHIEF JUSTICE granted a stay of the contempt order pending a petition for...